Commission of the European Communities v United Kingdom

European Community — Development project — Planning permission — Council Directive 85/337 obliging member states to assess projects likely to have significant effects upon environment — Whether government correctly transposing directive into UK law — Declaration granted Two local planning authorities received applications for outline planning permission to develop retail and leisure facilities. Both projects fell within Annex II to Council Directive 85/337 (on the assessment of the effects of certain public and private projects upon the environment). After considering the effects of the projects, as set out in a number of reports, and following public consultation, the authorities concluded that an environmental impact assessment (EIA) was not required. They also received legal advice that, as a matter of domestic law, an assessment could be carried out only at the initial outline planning permission stage. The European Commission complained to the UK government that some aspects of the national legislation concerning the assessment of the environmental impact of projects were incompatible with Directive 85/337 in particular those regarding outline planning permission with a requirement of subsequent approval of reserved matters. When the Commission received no satisfactory response, it applied to the European Court of Justice for a declaration that the UK had failed to fulfil its obligations under the directive by: (i) infringing Articles 2(1) and 4(2), since neither local authority had carried out an EIA of the respective projects despite the likelihood of them having significant effects; and (ii) transposing those articles incorrectly into domestic law by national rules under which an assessment might be carried out only at the initial outline planning permission stage, and not at the later reserved matters stage. Held: The declaration was granted. (1) The Commission had failed to satisfy the burden of proving that the UK had failed to adopt all necessary measures to ensure that projects likely to have significant effects upon the environment were subject to an EIA before consent was granted. It was not sufficient for the Commission to limit itself to general assertions without presenting specific evidence to support them. It could not merely rely upon presumptions that large-scale projects were automatically likely to have significant effects upon the environment without establishing, on the basis of specific evidence, that the competent authorities had made a manifest error of assessment. The Commission had not backed up its own assertions and refuted those of the UK government through examination of the material and documents supplied by the UK or by obtaining, producing, examining or presenting tangible and specific evidence from which the court could have assessed whether the authorities had exceeded the limits of their discretion. (2) However, the UK had failed to fulfil its obligations under Community law by incorrectly transposing Articles 2(1) and 4(2) into domestic law. A developer could not begin work on its project until it had obtained reserved matters approval. Until such approval had been granted, the development was still not finally authorised. Accordingly, the two steps together constituted a multi-stage development consent within Article 1(2) of Directive 85/337, which required that an assessment might, in principle, be carried out at each stage if the project was likely to have significant effects upon the environment. F Simonetti and X Lewis, acting as agents, appeared for the applicant; David Elvin QC and James Maurici (instructed by the Treasury Solicitor), appeared for the defendant. Eileen O’Grady, barrister